P. v. Ballard

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Filed 12/17/10 P. v. Ballard CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL LANCE BALLARD, JR.,
Defendant and Appellant.
E050584
(Super.Ct.No. RIF147039)
OPINION
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Affirmed as modified.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General and Kevin Vienna,
Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Daniel Lance Ballard, Jr., appeals after he was convicted
of robbery, attempted robbery, and street gang terrorism. He contends that the trial court

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erred in imposing sentence on the street gang offense; he argues that the term for that
offense should have been stayed under Penal Code section 654.1 Following this court’s
precedent in People v. Sanchez (2009) 179 Cal.App.4th 1297 (Fourth Dist., Div. Two),
we agree with defendant that the term on count 3 should have been stayed. We therefore
order the sentence modified, and we affirm the judgment as modified.
FACTS AND PROCEDURAL HISTORY
On November 12, 2008, Juan Ortiz, an employee of a liquor store in Perris, was
taking a break outside the store, sitting on the curb. Defendant approached and
demanded that Ortiz give him a dollar. Ortiz refused; defendant responded by jerking
Ortiz to his feet, shoving him around the corner and pushing him up against the wall.
Defendant aggressively searched Ortiz’s pockets, looking for money. Ortiz tried to push
defendant away. Defendant punched and kicked Ortiz.
Francisco Garza, another employee, saw defendant with his hands in Ortiz’s
pockets. He ran over to help Ortiz. Garza told defendant to leave Ortiz alone, and then
started to walk away, telling defendant that he would call the police. Defendant grabbed
Garza by the slack of his jacket and threw him to the ground. Ortiz saw defendant
punching Garza (Garza testified that defendant did not hit him in the face, but that Garza
struck his face on the ground when defendant threw him down). Ortiz escaped, ran into
the store, and used the store owner’s mobile telephone to call the police. Ortiz and Garza
1 All further statutory references are to the Penal Code unless otherwise indicated.

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saw defendant jump into the passenger seat of a silver car, which then left the area.
Garza later realized that his mobile telephone was missing from the holster on his belt.
A block or so away from the liquor store, sheriff’s deputies found defendant in an
apartment complex. Ortiz identified defendant as his assailant. He also identified
another man as the driver of the silver car. Garza’s mobile telephone was recovered from
defendant’s pocket.
A gang expert testified at trial. The liquor store where the attacks occurred was in
the territory of a local gang, the P-Loc Crips. Defendant claimed membership in the P-
Loc Crips when he was apprehended. Defendant had claimed the same affiliation in past
police contacts; defendant’s gang moniker was “Gangster.” The gang expert opined that
both defendant and the driver of the silver car, as well as other men found in the
apartment with them, were gang members.
A jury found defendant guilty of the robbery of Garza (§ 211), the attempted
robbery of Ortiz (§§ 211, 664), and street gang terrorism (§ 186.22, subd. (a)). The trial
court found true allegations that defendant had served a prior prison term (§ 667.5, subd.
(b)) and that defendant had a prior strike conviction (§§ 667, subds. (c), (e), 1170.12,
subd. (c)(1)). The court sentenced defendant to nine years eight months in state prison,
consisting of six years on count 1 (robbery, midterm of three years doubled to six years),
16 months consecutive on count 2 (attempted robbery, one-third the middle term of two
years, doubled as a second strike), and 16 months consecutive on count 3 (gang terrorism,
one-third the middle term of two years, doubled as a second strike).

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Defendant now appeals, urging that the trial court erred in imposing sentence on
count 3; he contends that the sentence on that offense should have been stayed under
section 654.
ANALYSIS
I. The Sentence on the Gang Terrorism Count Should Be Stayed
In People v. Sanchez, supra, 179 Cal.App.4th 1297, this court held that, where an
underlying felony was the basis for finding true the crime of gang participation, the
defendant’s intent and objective in committing both the felony and the gang terrorism
offense are the same. Accordingly, section 654 applies, and sentence on the gang
terrorism offense should be stayed. The instant case is indistinguishable from Sanchez.
The underlying robbery and attempted robbery were necessary elements of count 3, the
gang terrorism offense. Defendant’s intent in committing the gang offense was identical
to the intent in committing the underlying felonies. The same act that made the robbery
and attempted robbery punishable also made the gang terrorism offense punishable. Just
as in cases of felony murder and the underlying felony, the underlying felonies here were
necessary elements that transformed defendant’s gang membership into a criminal
offense. (People v. Sanchez, at p. 1315.) In the absence of any evidence of an
independent intent and purpose, section 654 applies to prohibit punishment for both
charges.
We note that other courts have decided the issue differently (See People v. Mesa
(2010) 186 Cal.4th 773, review granted Oct. 27, 2010, S185688 [Fourth Dist., Div.
One]), but follow our own precedent on the question.

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DISPOSITION
The judgment is modified, as follows: The 16-month term imposed on count 3
(gang terrorism) is hereby stayed. This stay shall become final if and when defendant has
served the remainder of his sentence. The judgment as thus modified is affirmed. The
trial court is directed to prepare an amended abstract of judgment, and to forward
certified copies of the amended abstract to the Department of Corrections and
Rehabilitation. (§§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKINSTER
J.
We concur:
/s/ HOLLENHORST
Acting P. J.
/s/ KING
J.

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